Cicero v Walter

[*1] Cicero v Walter 2021 NY Slip Op 50378(U) Decided on April 30, 2021 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 30, 2021
Supreme Court, Bronx County

Shahin Cicero and JOHN CICERO, Plaintiffs,

against

Eric Walter, D.P.M., Defendant.



30857/17



Plaintiffs' Attorney

Eliot M. Wolf, Esq.

Wolf & Fuhrman, LLP

1453 Webster Avenue

Bronx, New York 10456

(718)293-0980

Defendant's Attorney

Kyle B. Epstein, Esq.

Turken Heath & McCauley, LLP

84 Business Park Drive, Suite 307

Armonk, New York 10504

(914)357-8600
Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion dated March 5, 2020.

PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1

ANSWERING AFFIDAVIT AND EXHIBITS 2

REPLY AFFIDAVIT AND EXHIBITS 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:

This medical malpractice action involves podiatric surgical care rendered by defendant to plaintiff, Shahin Cicero, in early 2016 to address bilateral bunion deformities. The initial bill of particulars (BP) was served in January 2018, then supplemented in July 2018 (first supplemental BP), and again in November 2018 (second supplemental BP). A note of issue was filed on January 24, 2019, and on August 29, 2019, a third supplemental BP was served. On February 3, [*2]2020, the Court granted defendant's motion to strike the (post note of issue) third supplemental BP, finding that it included new injuries, and therefore should be an amended BP and not a supplemental BP. (CPLR 3042(b) (BP may be amended once as a matter of course prior to filing note of issue), 3043(b) (supplemental BP may not include new injuries); DeNicola v Mary Immaculate, 272 AD2d 505 [2nd Dept 2002]; Kyong v County of Suffolk, 237 AD2d 412 [2nd Dept 1997].) This was without prejudice to plaintiffs seeking leave to amend their BP. A little more than one month after the Court's decision, plaintiffs moved by notice of motion dated March 5, 2020, for leave to serve an amended BP that mirrors the previously served third supplemental BP.

A BP is merely an amplification of the pleadings, (State of New York v Horsemen's, 34 AD2d 769 [1st Dept 1970]), and within the context of a medical malpractice action, it allows a plaintiff to expand on the extent of the injuries and damages. (Tate v Colabello, 58 NY2d 84 [1983].) This is especially useful when the long term sequela or permanency of an injury is not known earlier in the action. (Spiegel v Gingrich, 74 AD3d 425 [1st Dept 2010].) Here, the additional injuries that give rise to the instant motion are as follows: (1) cross over deformity of the second toe overlapping the left hallux, (2) collapse of the arch on the right foot more than the left foot, (3) posterior tibial tendon dysfunction, (4) right first metatarsophalangeal joint tenderness and pain on range of motion and (5) right foot drop. According to defendant, plaintiffs do not "explain th[e] inordinate delay in amending the [BP]," (Del Rosario v 114 Fifth, 266 AD2d 162 [1st Dept 1999]; Fuentes v City of NY, 3 AD3d 549 [2nd Dept 2004]; Schreiber v University of Rochester, 74 AD3d 1812 [4th Dept 2010]), and the requested relief prejudices defendant in that at no time during the discovery phase was he on notice of these alleged new injuries. (Cohen v Ho, 38 AD3d 705 [2nd Dept 2007]; Thompson v Connor, 178 AD2d 752 [3rd Dept 1991].) Lastly, defendant argues that plaintiffs failed to demonstrate that the alleged new injuries are causally related to the subject surgery. (Adighiuzor v NYC Housing, 2002 NYSlipOp 50327 [App Term 1st Dept 2002].) The plaintiffs argue that the injuries alleged in the proposed amended BP are the anticipated sequela of the original injuries, were previously alleged in a BP, and/or were included in the medical reports exchanged during the discovery phase. They also include an expert affirmation by Dr. George Wallace, a board certified podiatrist, in support of their motion.

The first additional injury in the amended BP is the "cross over deformity of the second toe overlapping the left hallux." Reference to this injury appears to have been included in the second supplemental BP, which discusses an overlapping second toe without identifying the corresponding foot. It was also included in the February 2019 independent medical exam (IME) report of defendant's (emphasis added) examining physician, Dr. Thomas DeLauro, as well as medical records dating back to December 2016. In addressing this injury, plaintiffs' expert, Dr. Wallace, opines that the "digital deformity of the hallux and second toe on the left foot are a direct result of the tendon rupture that [defendant] caused as same caused a loss of the medial arch, in turn, leading to an inability of the intrinsic muscles to maintain the proper digital position. It is well established in the podiatric community that one of the causes of bunion deformity is loss of the medial arch as that limits the muscles affecting the feet and toes to properly maintain foot function and alignment."

The second additional injury in the amended BP is the "collapse of the arch on the right [*3]foot more than the left foot." This injury was mentioned in the second supplemental BP as a collapse of the arch on the right without reference to the left foot, the February 2019 medical report by defendant's examining physician, and medical reports dating back to October 2017. According to Dr. Wallace, "as one of [the] functions of the anterior tibial tendon is to support the arch, it is more likely than not that the collapse of the arch described in the [IME] report of Dr. DeLauro as 'right arch collapse' and arch height on examination as low bilaterally, was the result of the ruptured anterior tibial tendon." The third additional injury is the "posterior tibial tendon dysfunction," and this injury was referred to in medical reports dating back to April 2018, and the February 2019 medical reports by defendant's examining physician. Dr. Wallace states that "this condition generally manifests itself as a collapse of the arch. Moreover, this condition, where the posterior tibial tendon, due to rupture of the anterior tibial tendon, now had to provide additional arch support, is logically related as a result of the failure of function of the anterior tibial tendon, which the defendant ruptured."

The fourth additional injury, "right first metatarsophalangeal joint tenderness and pain on range of motion," is referenced in the February 2019 medical report by defendant's examining physician. According to Dr. Wallace, this was discussed in the IME report which documented limitation of range of motion at the first metatarsophalangeal joint as "maximum tenderness was discovered on her right foot, upon manipulation of the first right metatarsophalangeal joint." He goes on to state that plaintiff, Shanin Cicero, had "no documented preoperative findings of such a complaint, nor any immediate post-operative findings of same, and had an altered gait pattern as a result of the rupture of the anterior tibial tendons on both of her feet, coupled with posterior tibial tendon dysfunction, and collapse of her right arch, the most logical conclusion is that with her altered gait pattern post-operatively there were/are added stresses on the first metatarsophalangeal joint causing irritation of that joint." The fifth and last additional injury, "right foot drop," was discussed during defendant's deposition on January 23, 2019, in which defendant acknowledged that the result of a patient suffering from a rupture of the anterior tibial tendon would be a drop foot. Dr. Wallace opines that plaintiff's need to use an ankle foot orthoses for a prolonged period of time supports the position that the ruptured anterior tibial tendon caused a foot drop, an expected sequela of the injury.

A party may serve a supplemental BP with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial, provided that no new cause of action is alleged or new injury is claimed. (CPLR 3043(b).) Where a new injury is claimed, a party may amend the BP once as a matter of course prior to the filing of the note of issue, (CPLR 3042(b)); however, in this matter plaintiffs are seeking to amend their BP post note of issue. Even so, it is well settled that leave to amend a bill of particulars should be freely granted unless the party opposing it can demonstrate prejudice or surprise. (Volpe v Good Samaritan, 213 AD2d 398 [2nd Dept 1995].) On the other hand, when leave to amend is sought on the eve of trial, judicial discretion should be discretely and cautiously exercised. (Fuentes v City of New York, 3 AD3d 549 [2nd Dept 2004].) And where there has been an inordinate delay in seeking to amend, plaintiff must establish a reasonable excuse for the delay, and submit an affidavit to establish the merit(s) of the proposed amendment. (Smith v Plaza, 243 AD2d 555 [2nd Dept 1997].) Here, some nine months had lapsed from plaintiffs' November 2018-second supplemental BP and their August 2019-third supplemental [*4]BP. And this third supplemental BP was eight months post note of issue. It was a little more than one month after the Court's decision to strike the third supplemental BP that plaintiffs moved by notice of motion dated March 5, 2020, for leave to serve an amended BP. Overall, the Court is not convinced that there has been an inordinate delay in seeking to amend. As for a trial date, given the current COVID restrictions, there is none, and this is probably true for the next few months. Lastly, plaintiffs have demonstrated that the injuries alleged in the proposed amended BP are the anticipated sequela of the original injuries, were previously alleged in a BP, and/or were included in the medical reports exchanged during the discovery phase.

In opposing plaintiffs' motion to amend, defendant cites to Del Rosario, (266 AD2d 162), Fuentes, (3 AD3d 549), Schreiber, (74 AD3d 1812), Cohen (38 AD3d 705), Thompson (178 AD2d 752), and Adighiuzor (2002 NYSlipOp 50327). However, these cases are distinguishable from the instant action. In Del Rosario, a premises liability action, plaintiff's request to amend the BP three years after commencement of the action to add various statutory violations based on a new theory of liability was denied as untimely, prejudicial and without merit. In Fuentes, plaintiff failed to provide, inter alia, an affidavit from a medical expert establishing a nexus between the newly alleged injuries and the accident. In Schreiber, an action based on injuries to plaintiff's right leg, plaintiff submitted a supplemental BP some six months after the trial court's deadline, and failed to provide any medical evidence to suggest that he suffered left leg injuries as a result of defendant's treatment. In Cohen, the trial court denied plaintiff's motion to amend the BP during the trial to include a different theory of medical malpractice. In Thompson, plaintiff's motion to amend the BP was denied because, inter alia, it sought to add new theories of recovery which were not readily discernable from the earlier BP. And in Adighiuzor, the newly alleged knee injuries were not suggested in the earlier BP, and the expert affirmation failed to establish the necessary cause connection. Here, plaintiffs are not seeking to change the theory of liability, and given that the injuries in question were previously mentioned in some way either in an earlier BP or the medical reports that were exchanged during the discovery phase, there is no real prejudice or surprise. Moreover, plaintiffs have provided a medical expert's affirmation to establish the requisite nexus.

Therefore, based on the aforementioned, the instant motion by plaintiffs to amend their BP is granted. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon defendant within 30 days of receipt of copy of same. This constitutes the decision of this court.

Dated: 4/30/21

Hon.______/S/__________________

Joseph E. Capella, J.S.C.